Treating Physicians’ Right to Disagree With Their Patients

A recent appellate decision allowed defendants’ retention of experts who previously treated one or more of the hundreds of plaintiffs claiming damages in the pelvic mesh litigation against Johnson & Johnson. The decision in In Re Pelvic Mesh/Gynecare Litigation   should have a positive impact for the defense of mass litigation as well as the development of treating physician fact witness testimony in “ordinary” personal injury and products liability cases.

 The Appellate Division rejected plaintiffs’ argument that treating physicians have a broad duty to “refuse affirmative assistance to the patient’s antagonist in litigation.”  Instead, the court “disavow[ed] any suggestion that a physician, or any witness for that matter, has a duty to support substantively a litigant’s claims or defenses.”  The Appellate Division reaffirmed that treating physicians can be compelled to testify as a fact witness regarding their diagnosis and treatment of a plaintiff, including the physicians’ determinations as to the cause of the condition in dispute. The decision further reinforces defense counsel’s right to “interview treating physicians informally and outside the presence of plaintiffs or their attorneys” on consent of the treating doctor.

The court aptly noted, “No physician or other witness has a duty to support the ‘litigation interests’ of a party to a lawsuit in the sense of supporting the party’s claims or defenses.” A treating physician owes no “duty of loyalty . . . not to disagree with the patient’s litigation position. Rather, as imposed by law, the physician’s duties in litigation are to cooperate procedurally when called upon and to provide truthful information.”

Given the number of plaintiffs – or potential plaintiffs – in consolidated, mass-tort type actions, a decision that precludes defendants from using as an expert any physician who had ever treated any of the plaintiffs would fundamentally tilt the balance in favor of plaintiffs in such litigation. While the fact that the appellate division stepped in and reversed the trial court’s opinion to that effect does not fully even the balance – as plaintiffs often have advantages in gaining access to inside medical information that defendants do not – this reversal at least levels out to some extent the expert playing field in cases such as this in New Jersey.

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